Phillips v. Northwest Regional Communications, Civil Action No. 05-1502.

Decision Date27 October 2009
Docket NumberCivil Action No. 05-1502.
Citation669 F.Supp.2d 555
PartiesJeanne PHILLIPS, Administratrix of the Estate of Mark Phillips, Deceased, Plaintiff, v. NORTHWEST REGIONAL COMMUNICATIONS, Daniel Nussbaum, Danielle Tush, and Brian Craig, Defendants.
CourtU.S. District Court — Western District of Pennsylvania

John D. Perkosky, Michael A. Murphy, Philip A. Ignelzi, Ogg, Cordes, Murphy & Ignelzi, Pittsburgh, PA, for Plaintiff.

Alan E. Johnson, Scott G. Dunlop, Marshall, Dennehey, Warner, Coleman & Goggin, Pittsburgh, PA, for Defendants.

MEMORANDUM

WILLIAM L. STANDISH, District Judge.

Michael Michalski shot and killed his girlfriend, Gretchen Ferderbar, her new boyfriend, Mark Phillips, and her sister Linda at the Ferderbar residence in a suburb of Pittsburgh, Pennsylvania, on October 29, 2003. On February 22, 2005, Plaintiff Jeanne Phillips was appointed administratrix of her son's estate and subsequently filed suit in this Court, claiming that Michalski's former employer, Northwest Regional Communications, several of its employees, and others were negligent in allowing him to use Northwest databases to obtain unauthorized information about the victims. The actions of each Defendant ultimately denied Mark Phillips his due process and equal protection rights guaranteed by the United States Constitution. More than four years later, the remaining Defendants have filed a motion for summary judgment in their favor (Doc. No. 91); for the reasons discussed below, the motion is granted in its entirety.

I. BACKGROUND
A. Factual History1

During the three years of their relationship, Gretchen Ferderbar ("Ferderbar") and Michael Michalski ("Michalski") lived with his mother, with her parents, and in their own apartment, apparently depending on how smoothly their relationship was going at the time. At the time of the events in question, Michalski was living with his mother in Shaler, Pennsylvania, and Ferderbar with her parents, less than two miles away from the Michalski residence.

Michalski had been employed since approximately November 2000 as a telecommunications dispatcher at Northwest Regional Communications ("NRC" or "Northwest"), a service agency which routed emergency calls to appropriate response agencies and provided access to confidential federal, state and local databases to law enforcement agencies in parts of Allegheny County, Pennsylvania. Northwest was organized sometime in 1997 as a non-profit corporation by nine municipal governments under the Pennsylvania Intergovernmental Cooperation Act and was funded solely by those municipal governments and by 9-1-1 fees processed by Allegheny County. Employees of NRC were not considered employees of any municipality and did not receive the same employee benefits as employees of the participating municipalities or the County of Allegheny.2

The NRC Board of Directors, composed entirely of public officials drawn from each of the municipalities which used its services, appointed the officers of Northwest. In October 2003, the Northwest Communications Director was Defendant Daniel Nussbaum ("Nussbaum") who had worked there since February 2003. Nussbaum would frequently consult with the chairman of the Administrative/ Operations Committee of the NRC Board of Directors, Tobias Cordek ("Cordek") who worked as Town Manager of the Town of McCandless, and acted as Nussbaum's immediate supervisor. Cordek's office and the NRC offices were located in the same building, along with the Town of McCandless Police Department.

All the telecommunications dispatchers and other employees of NRC reported directly or indirectly to Nussbaum. Nussbaum's general duties included being in charge of the overall day-to-day operations of the 9-1-1 Call Center, assisted by the operations manager, Nancy Speicher ("Speicher.") In the fall of 2003, NRC employed between 15 and 17 full- and part-time dispatchers, three of whom were on duty at any given time,

Defendant Danielle Tush ("Tush") began working as a telecommunications dispatcher in 2001. Tush considered Michalski "a co-worker, a friendly acquaintance," She knew Ferderbar was Michalski's girlfriend because she would come to the NRC Call Center from time to time to deliver food while he was on duty and they were regularly in contact by telephone. Tush recalled numerous occasions when Michalski would raise his voice or slam the phone down when talking with Ferderbar; she described them as being verbally "at each other constantly," but she never witnessed any physical aggression between them. Tush testified at her deposition that she had seen photographs Michalski brought to NRC depicting Ferderbar and another woman nude and recounted his attempts to use the internet while at work to locate sex partners for himself and Ferderbar. Tush thought of Michalski as volatile, abusive and potentially violent based on videotapes he had shown at work and on his report to her that he had broken the windshield of someone's car. She further testified that Michalski would harass another dispatcher at the Call Center until he would "flip out," then Michalski would film his victim's reaction and refer to it as "hilarious." According to her deposition testimony, Tush did not socialize with Michalski or Ferderbar outside of work.

Defendant Brian Craig ("Craig") joined Northwest in 2002, also as a dispatcher. Craig considered Ferderbar Michalski's girlfriend based on her visits to the Call Center and numerous telephone calls; he described their relationship as "rocky." He indicated that during repeated telephone calls with Ferderbar, Michalski would become angry, raise his voice, and abruptly hang up the phone, but explained, "It was sometimes hard to distinguish whether he (Michalski) was mad or if he was just talking like Mike did." Craig testified he had also seen the nude photographs and thought Michalski "got a kick" out of abusing others based on his reports of confrontations with prostitutes and homeless people. Like Tush, Craig denied having any social interaction with Michalski or Ferderbar outside of work.

Nussbaum generally worked a Monday through Friday day shift while Michalski usually worked nights and weekends. Nussbaum did not socialize with either Michalski or Ferderbar except for an occasional lunch while at the Center and testified he knew no details about their relationship.

As an emergency call service agency, NRC maintained several databases which contained a wide range of information about individuals in the areas it served. One of the databases, called Commonwealth Law Enforcement Assistance Network or "CLEAN," was administered by Pennsylvania law enforcement agencies. Another was NCIC, administered and run by the Federal Bureau of Investigation and other federal law enforcement agencies. Together, these databases provided information such as a person's name, date of birth, social security number, driver's license information, motor vehicle registration information, and criminal history. The NRC computer system also provided maps of the area to supplement wall maps and hand-held maps such as those published by Rand-McNally. NRC had established policies to protect the confidentiality of information obtained from the Center's databases as well as procedures for reporting improper access or use of confidential information from the databases.

The telephone system at NRC allowed a dispatcher to immediately learn the telephone number of the caller and, if the call was made from a land-line, the location of the telephone and the individual to whom the line was registered. It was Nussbaum's policy that if NRC staff were not otherwise occupied with emergency services, they were allowed to provide information to any one who called seeking directions to a certain address. Nussbaum explained that he regarded providing such non-confidential information as a service to the public, on the theory that callers could "get the same information if they went to a Walmart or a gas station and got a map." In fact, a training manual, prepared in May 2002 and in use at the time of the events discussed herein, specifically directed NRC dispatchers to give such assistance to callers. (See Doc. No. 94, Exh. G, Nussbaum Declaration, Exh. 40, page from NRC training manual dated May 20, 2002.) There was some disagreement among the staff on the appropriateness of providing this information. For instance, Lori Tedesco ("Tedesco") testified that as a dispatcher, she understood that her role was to handle 9-1-1 emergency phone calls and serve as a link between the public and emergency service agencies; she believed giving directions was not appropriate.3

As noted above, Ferderbar and Michalski had been involved in a "rocky," off-and-on relationship for about three years as of late 2003. Sometime in September 2003, Michalski bought a Pontiac Grand Am automobile for Ferderbar's use. The vehicle was jointly owned, but Michalski made the monthly car payments because Ferderbar did not have sufficient income to do so.

In October 2003, Michalski began to suspect that Ferderbar might be dating another man. While at work on Sunday, October, 12, 2003, Michalski ran an unauthorized search on the CLEAN database to get the vehicle identification number ("VIN") of all vehicles registered to himself. At his deposition, he testified he wanted the VIN so that if he found out Ferderbar was seeing someone else, he could get a spare key made for the car and take it back. When Michalski performed the unauthorized search, he accidentally sent the inquiry to a number of police departments and other agencies. Tedesco, who was working the same shift, testified she received a telephone call from the Pennsylvania State Police in Harrisburg, indicating that a query originating at NRC had been improperly submitted. When Tedesco questioned Michalski about it, he told her he had run information...

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